Can You Be Arrested for Burglary If You Didn’t Take Anything? (California Penal Code 459)

Many people believe that you must actually take something in order to be convicted of burglary. It’s a perfectly valid assumption since the idea of a burglary brings to mind a person physically taking someone else’s possessions. However, this is not the case. You can be arrested for burglary even if you didn’t take anything.

California Burglary Law (Penal Code 459)

California Penal Code Section 459 defines burglary as breaking and entering a structure with the intent to steal or commit a felony. ¹  But what if you don’t actually take anything? Can you still be charged with burglary by simply entering a building? In California, the answer is yes.

Prosecution for Burglary

In order to convict you of burglary under Penal Code 459, a prosecutor must prove beyond a reasonable doubt the following:

– You entered a building; and
– When you entered the building, you intended to commit theft or a felony.

Under Penal Code 459, a prosecutor must prove that you acted willfully and knowingly to steal or commit a felony. This intent requirement can be satisfied if you acted willfully and knowingly in an attempt to take property that does not belong to you. Alternatively, you can satisfy this intent if you intended to willfully and knowingly commit a felony while inside the structure.

Examples of felonies covered under the language of PC 459 include, but are not limited to:

• Murder
• Sexual assault
• Battery
• Embezzlement, and
• Vandalism

As such, you do not actually need to do anything once inside the structure. You merely have to have intended to either steal or commit a felony when you entered the structure.

Punishment for Burglary

First degree burglary is entering a residence with the intent to commit a felony or theft. It is punishable by two, four, or six years in prison. First degree burglary is a strike under California Penal Code Section 1192.5, meaning you will be required to serve 85% of your sentence if you are convicted of first degree burglary.
Burglarizing any structure that is not a residence is considered second degree burglary. Second degree burglary is a “wobbler offense.” The prosecutor can choose to charge you with a felony or a misdemeanor. Felony second degree burglary is punishable by up to three years in county jail, while misdemeanor second degree burglary could be punished by up to one year in county jail.

Defense to Burglary – No Requisite Intent

Even though a prosecutor only needs to prove two elements in order to convict you of burglary, your experienced criminal defense attorney may be able to raise certain defenses to help you win your case.

If you did not have the requisite intent to commit a felony offense or intent to steal at the time you entered the residence or structure, you cannot be convicted of burglary. Additionally, you cannot be convicted if you developed the intent to steal or commit a felony after entering the structure.

Call the Burglary Attorneys at Wallin & Klarich Today

If you or a loved one has been charged with burglary, you need an experienced criminal defense attorney who can help you understand the charges against you and plan a winning defense strategy. At Wallin & Klarich, our dedicated attorneys have been successfully helping people charged with burglary for over 40 years. You don’t have to face this battle alone.

We have offices in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks. No matter where you live in Southern California, an experienced Wallin & Klarich attorney is available nearby.

Call us at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.

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